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November 16, 2009

Justice Scalia is coming to town...

to be the keynote speaker at The Ohio State University Moritz College of Law's event on "Originalism and the Jury". This exciting event is hosted by the Ohio State Law Journal, and I really like the plug that participant Orin Kerr gives this "very cool symposium" in this post at The Volokh Conspiracy:

We’ll discuss the Sixth and Seventh Amendment jury trial rights, their original meanings, and to what extent courts should or are likely to match the modern jury trial right to what existed at the time of the framing. The symposium is notable for the unusually diverse perspectives of the speakers: It features judges, professors, and practitioners in roughly equal numbers. Justice Scalia will deliver the keynote address.

Along with Orin and Judge Nancy Gertner and Professor Stephanos Bibas, I am on the Sixth Amendment panel. I will be presenting the (radical?) idea that the Framers likely would have wanted juries to play a role in modern habeas actions. But, candidly, I am most excited to hear what all the other participants have to say about originalism and juries. And, of course, I am also excited to hear what Justice Scalia has to say about these topics.

I suspect I will be off-line most of Tuesday while this event is on-going, though perhaps I will find time late in the day to blog about aspects of the event. I may also try to keep track of how many times Blakely gets mentioned throughout the symposium, though I am not sure if I should count all the times I mention the case in my own remarks.

UPDATE: As detailed in this AP report, Justice Scalia focused on originalism rather than on the jury in his keynote speech. The entire event was remarkable, and I enjoyed all of the panel presentations tremendously. I also had the honor of sharing a table with Justice Scalia at dinner and was able to confirm first-hand what a personable and engaging gentleman he is.

"The False Promise of Adolescent Brain Science in Juvenile Justice"

Recent scientific findings about the developing teen brain have both captured public attention and begun to percolate through legal theory and practice. Indeed, many believe that developmental neuroscience contributed to the U.S. Supreme Court’s elimination of the juvenile death penalty in Roper v. Simmons. Post-Roper, scholars assert that the developmentally normal attributes of the teen brain counsel differential treatment of young offenders, and advocates increasingly make such arguments before the courts. The success of any theory, though, depends in large part on implementation, and challenges that emerge through implementation illuminate problematic aspects of the theory. This Article tests the legal impact of developmental neuroscience by analyzing cases in which juvenile defendants have attempted to put it into practice. It reveals that most such efforts fail. Doctrinal factors hamstring most claims — for example, that persons with immature brains are incapable of forming the requisite mens rea for serious crimes. Limitations intrinsic to the science itself — for example, individual variation — also hinder its relevance and impact. These factors both explain why developmental neuroscience has had minimal effects on juvenile justice in the courts and illustrate why it generally should. Moreover, direct reliance on neuroscience as the metric for juvenile justice policy may jeopardize equality and autonomy interests, and brain-based arguments too frequently risk inaccuracy and overstatement. The cases also strongly suggest that neuroscience does not materially shape legal decision-makers’ beliefs and values about youthful offenders but instead will be read through the lens of those beliefs and values.

Developmental neuroscience nonetheless can play a small role in juvenile justice going forward. Legislatures and courts may regard that science as one source among many upon which to draw when basing policy choices on assumptions about juveniles as a group. To go further is unwarranted and threatens to draw attention away from critical legal and environmental factors — good schools, strong families, economic opportunities, mental health care, humane sentencing regimes, and rehabilitative services — that are both more important and subject to greater direct control.

The Eleventh Circuit, in a ruling that seems like deja vu all over again, reverses a below-guidelines sentence in a high-profile, white-collar case today in US v. Livesay, No. 08-14712 (11th Cir. Nov. 16, 2009) (available here). These snippets from the ruling help highlight why this case is like a CourtTV version of the movie Groundhog's Day:

Whoever said “third time’s a charm” was apparently unfamiliar with the history of this case.... Livesay’s first sentencing hearing occurred in June 2004.... [At his third resentencing, the] district court again granted the government’s § 5K1.1 motion and imposed a term of 5 years probation. For the third time, the government appealed the sentence....

[B]ecause the sentence imposed in this case is not reasonable in light of the sentencing factors outlined in § 3553(a), we once again vacate the sentence and remand this case to the district court for resentencing. Not only do we hold that the particular sentence imposed below is unreasonable, but we also hold that any sentence of probation would be unreasonable given the magnitude and seriousness of Livesay’s criminal conduct. As we stated in Martin, only the imposition of a meaningful period of incarceration will meet the goals that Congress laid out in the sentencing statute.

As detailed in this SCOTUSblog post, following up a similar summary reversal last week in a capital case from the Sixth Circuit (discussed here), the Supreme Court started another week today with another summary reversal in another capital case. Here is the SCOTUSblog summary of the ruling:

In a summary decision, the Court ruled that a defense attorney had not provided inadequate legal assistance to a California death row inmate in a murder case by carefully composing the offering of favorable evidence so as not to provide an opening for prosecutors to bring in evidence of an earlier brutal murder. The unsigned ruling in Wong v. Belmontes(08-1263) apparently will reinstate the death penalty against Fernando Belmontes, Jr., for a bludgeoning murder and a robbery in which the killer obtained $100 and used it to buy beer and drugs to consume that same night. The “Per Curiam” ruling — decided with formal briefing or oral argument — was tightly confined to the specific facts of the case, and did not appear to provide any new legal standard on the effectiveness of criminal trial lawyers’ work.

The Belmontes ruling, which is available here, is so fact-specific that it is hard to find even a broader principle in what is plainly an error-correction ruling from SCOTUS. Perhaps the only line that might be quoted in later cases is this description of what Strickland's ineffective assistance prejudice standard means in capital cases: "Strickland does not require th eState to “rule out” a sentence of life in prison to prevail. Rather, Stricklandplaces the burden on the defendant, not the State, to show a 'reasonable probability' that the result would have been different."

SCOTUS adds a habeas case (with a sentencing spin) to its docket

As detailed in this new SCOTUSblog post, the Supreme Court has added yet another case to its docket that should interest sentencing fans. The case is Magwood v. Culliver, and here is the question that the Court has taken up:

When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?

Though a habeas case arising in a death penalty context, it seems quite possible that Magwood (which is has sentencing's old friend Jeff Fisher as counsel of record) could address some legal issues that could impact lots of other types of cases in lots of types of sentencing settings.

Reflecting a bit more broadly on this newest cert grant, it is becoming easier and easier to conclude that the addition of Justice Sotomayor to the Court has continued the trend of the early Roberts Court to take up many criminal justice cases and issues with important day-to-day implications for many criminal practitioners.

Another US Sentencing Commission regional hearing on tap for this week in Austin

As detailed in this press release, the US Sentencing Commission has another one of its regional public hearings on tap for later this week. This sixth regional public hearing is scheduled for November 19-20, and this one is taking place at the University of Texas School of Law. Though I suspect former USSC Chair Judge Hinojosa had a hand in picking the Longhorn locale for this hearing, this event will be run by the recently confirmed new USSC Chair, Judge Sessions.

As detailed in this official agenda, another fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy in this regional hearing. I suspect some of the written testimony will be available via the USSC's website next week. I would bet that the challenges of child porn sentencing is again a topic of discussion as it has been in many prior regional hearings.

A freezer full of cash made ex-Rep. William Jefferson a national punch line, and a federal judge on Friday made him a record-holder: The 13-year prison sentence given to the Louisiana Democrat is the longest ever handed down to a former Member of Congress....

Ex-Rep. Duke Cunningham (R-Calif.), who pleaded guilty in March 2006 to accepting more than $2.4 million in bribes from defense contractors, as well as tax evasion and fraud, is serving an eight-year, four-month sentence in a federal penitentiary in Tucson, Ariz. Prior to Jefferson’s sentencing, Cunningham had the distinction of receiving the longest prison term for a former lawmaker. He is scheduled to be released in June 2013.

At least three other former House Members have also completed their terms of incarceration in federal prisons in the past year or so, including ex-Reps. Jim Traficant (D-Ohio), Bob Ney (R-Ohio) and Frank Ballance (D-N.C.)....

In court documents, [defense lawyers] cited a litany of other previously incarcerated lawmakers, part of an effort to limit Jefferson’s term to no more than 10 years.... [But] federal prosecutors recommended Jefferson receive a prison term of up to 33 years, asserting his “crimes against the people of the United States were exceptional in their sheer number, length, and breadth.”

In addition to all its political dimensions, this case also spotlights the distorting nature of the federal sentencing guidelines and post-Booker sentencing statistics. Though Jefferson received a record-setting long sentence and is now scheduled to be incarcerated until he turns 75-years-old, his sentence will be recorded as a below-guideline Booker variance in which the judge gave a sentence less than half as long as what was recommended by the guidelines. In other words, in a post-Booker world with inflated federal sentencing guidelines, even a record-long sentence is coded as very lenient.

November 15, 2009

The shameful state of clemency in the Buckeye state (and in the United States)

This notable new article from my own Columbus Dispatch, which is headlined "Clemency requests piling up," documents the shameful state of clemency in the state of Ohio. Here are some of the sorry details of what is going on (or, should I say, not going on) in the Buckeye state:

When her father went to prison nearly 10 years ago, Amberley Tapp was a precocious girl of 7 with hair of golden ringlets and a sunny disposition living in a nice home in Delaware, Ohio. Fast forward to 2009, to an angst-ridden 16-year-old with deep, sad eyes who cries frequently and sometimes feels as if she can't breathe.

Meanwhile, a unanimous recommendation by the Ohio Parole Board that Bradley Tapp, Amberley's father, be granted executive clemency sits on Gov. Ted Strickland's desk. It has company: 712 pending clemency applications in other cases, some dating to 2005.

In nearly three years in office, Strickland, a former congressman, prison psychologist and Methodist minister, has delayed executions several times and twice commuted the death penalty. But he has not acted on any other clemency requests, a break with the practices of past governors....

Tapp, 45, who is serving a 14-year sentence for two second-degree felony counts of assault, has twice been recommended for clemency by the Ohio Parole Board. The charges resulted from a drunken encounter he had with two Delaware County homeowners in September 1999. Tapp's victims suffered serious but not life-threatening injuries.

Judge Henry S. Shaw of Delaware County Common Pleas Court threw the book at him. Now retired, Shaw has twice since said he regrets the harsh sentence, calling it "manifest injustice." Former Gov. Bob Taft rejected Tapp's clemency plea without comment in November 2005.

Strickland's predecessors, going back to Gov. James A. Rhodes, rejected the vast majority of clemency requests they received, but they usually handled several hundred cases each year to prevent a backlog like the one Strickland now faces.

Strickland spokeswoman Amanda Wurst said he is now reviewing requests submitted before 2008, including some carried over from the Taft administration. "Once the governor has completed his review process he will begin reviewing 2008 clemency requests," she said. "Mr. Tapp's request was made in 2008, so his request will be reviewed as a part of the 2008 clemency-request review process." Wurst said there is no "set time for an announcement."...

Amberley acknowledges that her father "did something stupid" and deserved punishment. But she said he's done his time -- more time, in fact, than some murderers. "All the governor has to do is look on his desk ... to take 30 seconds of his life to sign a piece of paper," she said. "I don't think he even realizes how much a family is being tortured. I want him to care about Ohio's justice system. Right now, he's showing he doesn't care."

This article captures the sorry state of disrepair into which the historic power of clemency has fallen. It would be bad enough if Governor Strickland was to denied all clemency requests during his nearly three years in office; the fact that these requests all sit upon his desk unaddressed is especially iniquitous. Gov Strickland and his staff have surely had more than enough time to establish a general policy for dealing with clemency requests and to start applying that policy to the hundreds of cases that have been awaiting a decision for many years. But rather than have the courage to grant or deny clemency requests, Gov Strickland is content to just let these requests (and the many humans impacted thereby) rot away from neglect.

Of course, Gov. Strickland might now say that he is just taking a cue from the current leader of his party and his country, President Barack Obama. As I have previously noted, Prez Obama is already historically slow in using his clemency power as he approaches the end of a full year in office without a single clemency grant. Indeed, as this official webpage reveals, it appears that Obama has over 3,000 requests for pardons and commutations siting unresolved on his Oval Office desk.

The title of this post is the headline of this story in today's New York Times. Here is how it starts:

President Obama has sent the Senate far fewer judicial nominations than former President George W. Bush did in his first 10 months in office, deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments.

Mr. Bush, who made it an early goal to push conservatives into the judicial pipeline and left a strong stamp on the courts, had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure. By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts.

Theodore Shaw, a Columbia University law professor who until recently led the NAACP Legal Defense and Educational Fund Inc., said liberals feared that the White House was not taking advantage of its chance to fill vacancies while Democrats enjoy a razor-thin advantage in the Senate enabling them to cut off the threat of filibusters against nominees. There are nearly 100 vacancies on federal courts.

“It’s not any secret that among the civil rights community and other folks there has been a growing concern about the pace of nominations and confirmations,” Mr. Shaw said. “You have to move fairly quickly because things are going to shut down before you know it, given that next year is an election year and who knows what is going to happen in the midterm elections. No one wants a blown opportunity.”

As I have noted before, the slow pace of judicial nominations from the Obama White House is especially significant for the development of sentencing law and practice. Lower court sentencing outcomes in the wake of Blakely and Booker have tended to be pro-guideline in part because many federal judges appointed during the Bush years were eager to preserve the toughness of the guidelines and the power these guidelines provided prosecutors. New blood in the lower federal courts might change these dynamics, but the Obama Administration needs to get cracking to make this a reality.